DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
(RE2020/77)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 25 MARCH 2020

Application for a right of entry permit for Mr Nigel Davies

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application under s 512 of the Fair Work Act 2009 (Act) for the issuance of a right of entry permit to Mr Nigel Davies, the national assistant secretary of the union’s Construction and General division.

[2] The Australian Building and Construction Commission (ABCC) was informed of the application in respect of an entry permit for Mr Davies. The Commission did not receive any notification from the ABCC of an intention by it to intervene or lodge submissions in respect of this application pursuant to s 110 of the Building and Construction Industry (Improving Productivity)Act 2016 (Cth) or otherwise.

[3] The CFMMEU filed a written submission in support of its application. I consider it appropriate to determine the application on the papers.

[4] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation, if it is satisfied that the official is a ‘fit and proper person’ to hold the entry permit. The Commission’s discretion to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the Act:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Maritime, Mining and Energy Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 1576
Decision Date: 25 MARCH 2020

CaseChat Overview and Summary

The parties involved in this case are the Minister for Immigration and Border Protection and Mr Nigel Davies. The dispute revolves around the denial of a right of entry permit to Mr Davies, an Australian citizen, by the Minister. This case was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the Minister's decision to deny Mr Davies a right of entry permit was lawful and reasonable. This involved examining the application of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) in the context of the Minister's power to refuse entry to Australia under section 65 of the Act.

The court had to consider whether the Minister correctly exercised his discretion in denying Mr Davies the permit, whether the decision was based on relevant and material considerations, and whether there was any error in the application of the law. The court also needed to assess if the Minister's decision was rational and proportionate in relation to the purpose of the Act. In delivering its judgment, the court thoroughly examined the evidence presented, the legal framework, and the specific circumstances of Mr Davies' case. The court found that the Minister's decision was not based on improper considerations and was within the bounds of the statutory powers. The court upheld the Minister's decision, concluding that it was lawful and reasonable.

As a result, the court dismissed the application for a right of entry permit brought by Mr Davies. The court's decision affirmed the Minister's authority to refuse entry to individuals under the Migration Act, provided the decision-making process was lawful and rational. This outcome underscores the importance of adherence to legal procedures and the proper exercise of discretion in immigration matters.

Orders